Camden Council v Cranney

Ground 1

1. Ground 1 relates to the Commissioner's alleged error of construction in respect of cl 2.6 of Appendix 1 of the Growth Centres SEPP. Council submits that the Commissioner erred in this respect because: 1. The Commissioner asked himself the wrong question. The question was not whether "the proposed development has been designed or approved for occupation as a single unit", as the Commissioner recorded at [19] of the primary judgment, but rather whether "the building has been designed or approved for occupation as a single unit"; 2. This error of construction was material to the Commissioner's ultimate findings. Having substituted a different test and having asked himself the wrong question, the Commissioner was distracted by an enquiry into the subject matter of the DA before him, which involved the creation of two dwellings in semi-detached form; 3. The language of cl 2.6 should be read in context and having regard to the objective which it was designed to promote. The objective of cl 2.6 was not to permit the subdivision of a proposed new building without development consent, but rather to require development consent where a potential subdivision may affect the provision of affordable housing and the building was originally contemplated as comprising a single unit; 4. The language "the building" in the Growth Centres SEPP refers to a building which is existing as opposed to a proposed building. Where the Growth Centres SEPP intends to refer to a "proposed development", it uses that nomenclature; and 5. Through the above analysis, the Commissioner reached an erroneous conclusion and consequently constructively failed to determine the DA according to law.
2. Council submits that if the Commissioner had asked himself the right question, the only conclusion available to him was that the building (being the existing building) had been designed or approved for occupation as a single unit. Council submits that this is clear from the fact that as originally designed and approved, the second dwelling was a "secondary dwelling" and therefore must, according to the definition of that term in the Dictionary to the Growth Centres SEPP, be established "in conjunction with" another dwelling and must be on the same lot of land as the "principal dwelling".
3. The respondent submits that, contrary to Council's submissions, the Commissioner was clearly correct on this point. The respondent submits that on any fair reading of [19] in the primary judgment, the Commissioner found that the building had not been designed or approved for occupation as a single unit as the application relates to two separate tenancies and the building as it currently stands is also designed for occupation as two units because of the secondary dwelling.
4. The respondent submits that the use of the term "proposed development" in [19] does not mean that the Commissioner failed to ask himself whether the building was so designed or constructed. The respondent says the submission of Council to this effect is a pernickety and unfair approach to the Commissioner's reasoning. Alternatively, the respondent submits that the alleged error in expression does not give rise to a material error of law because if the word "building" were substituted for "proposed development" in [19], the paragraph would be correct. This is because before the proposed development there is a primary and secondary dwelling, and afterwards, two semi-detached dwellings.
5. The respondent further submits that the only evidence before the Commissioner and before the Court on appeal is that the existing building was designed and approved as other than a single unit because it contained a secondary dwelling. The respondent submits that just because the secondary dwelling is in conjunction with, and on the same lot as, the primary dwelling does not mean that the two dwellings are a "single unit" or occupied as a "single unit" for the purposes of the Growths Centre SEPP.
6. In reply, Council submits that its approach cannot be called "pernickety" if the approach taken by the Commissioner gave rise to an erroneous answer. It submits that substituting the word "building" for "proposed development" does not cure the Commissioner's error because the existing secondary dwelling on the site cannot be lawfully used or occupied otherwise than in conjunction with and on the same lot as the primary dwelling, and the two dwellings taken together therefore constitute a single unit.
7. Council submits that this interpretation accords not only with the natural meaning of the text, but also the town planning purpose of cl 2.6, which it says recognises that in some cases development consent for strata subdivision should not be required because the merit assessment which would otherwise be required has already been undertaken as part of the approval process of the existing building or design. Council submits that in the context of the present DA that town planning purpose is not applicable because the existing building was designed as a single unit.

Consideration

1. In my view, cl 2.6 directs attention towards the existing building as opposed to the proposed development. This is made abundantly clear by the fact that cl 2.6 places emphasis on the "building" as opposed to the "development".
2. Consideration of Ground 1 therefore first requires analysis of Council's submission that the Commissioner asked himself the wrong question. It is clear that at [19] of the primary judgment the Commissioner used the words "proposed development" and "application" instead of the correct formulation "building". I consider this indicative of the Commissioner having misdirected himself as to the correct test to apply.
3. I find this in spite of the fact that [19] follows on directly from [18], where the Commissioner correctly stated the test. In those circumstances, had the words "proposed development" been the only indication that the Commissioner applied the wrong test, the respondent's argument that it was a mere slip may have been compelling. However, I consider that the reference to "the application", which the Commissioner noted "seeks two separate tenancies", meant the DA presently before him and is further indication that he asked himself the wrong question.
4. I have not placed reliance upon the fact that the Commissioner's reasoning was expressed in the past tense, which the respondent submitted was indicative of the fact that he was examining the existing building instead of the proposed development, because the past tense could be equally apposite to a building which has been constructed or something which has merely been proposed.
5. It appears that the Commissioner placed reliance on the word "designed" in cl 2.6. Indeed, the correct construction of the clause, giving the word "designed" appropriate work to do, is not without difficulty. However I am comfortably satisfied that where strata subdivision is sought for an existing building, the relevant inquiry (which determines whether development consent is required for strata subdivision) is directed at the existing building as it was previously designed or approved, as opposed to the design prepared for the proposed strata subdivision. If it were otherwise, cl 2.6 would have a circular operation such that, in seeking strata subdivision, the building would necessarily be (re)designed as other than a single unit.
6. Even if my conclusion that the Commissioner misdirected himself is incorrect, and he appropriately considered the existing building to determine whether development consent was required to effect strata subdivision, I find that he nevertheless fell into legal error because I find that, on a correct reading and application of cl 2.6, adopting the principles below, the existing building was "designed or approved as a single unit".
7. The correct approach to the interpretation of delegated legislation is now generally considered to be that general principles relating to the interpretation of primary legislation are equally applicable to interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36].
8. I also note that whilst environmental planning instruments should be construed in a practical manner, rather than undertaking a meticulous examination of their terms, this does not override the basic principles of statutory construction which require that the Court pay attention to the language of the instrument and its apparent purpose: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54].
9. Whilst a different approach to the interpretation of delegated legislation may be appropriate where it appears that the draftsperson has been less than fastidious in his or her choice of language (4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [106]), I consider that this is a case where the draftsperson's language is precise such that the ordinary principles of statutory construction should apply: DM & Longbow at [23].
10. Accordingly, the focus must be on the terms of cl 2.6, and in particular what is meant by the word "unit". I accept Council's submission that the word unit is used in contradistinction to the word dwelling, which is used in numerous places elsewhere in the Growth Centres SEPP. Therefore the fact that the existing building comprises two dwellings is not determinative. However, in many cases a separate dwelling will comprise a separate unit. Whether it so qualifies will be a matter of fact and degree in each case.
11. The Macquarie Dictionary (6th ed, 2013) relevantly defines "unit" as follows: unit n. 1. a single thing or person; any group of things or persons regarded as an individual. 2. one of the individuals or groups making up a whole, or into which a whole may be analysed. 3. any magnitude regarded as an independent whole; a single, undivided entity… 6. Also, home unit. a. one of a number of dwelling apartments in the same building, each owned under separate title, frequently by the occupier. Compare flat² (def 1). b. (pl.) a block of such units… 12. a self-contained suite of rooms, as in a motel…
12. In common parlance the word unit expresses something considered as an individual thing. Given that unit is used in cl 2.6 in contradistinction to the term dwelling, I do not consider that much assistance is gained from the meaning the word unit has in a technical town planning sense, though it is interesting to note that, at least in the Macquarie Dictionary definition, a separate title is required for a dwelling to be considered a unit in its own right.
13. Carefully reading the language employed in cl 2.6(3)(b), the words "designed or approved" and "for occupation" indicate that the design, consent, and use of the building are the key considerations in determining whether something is a "unit" for the purposes of the clause.
14. Development consent for the existing building was issued on 22 October 2015 for "Construction of Proposed Dwelling, Attached Secondary Dwelling and Associated Works". The Dictionary in Appendix 1 of the Growth Centres SEPP relevantly defines a secondary dwelling as "a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling" (emphasis added).
15. The two italicised portions in the definition of secondary dwelling provide a strong textual basis for the view that a primary and a secondary dwelling should be considered a "unit" for the purposes of cl 2.6, especially given the emphasis placed upon design and approval in the clause. It is clear that in approving a "Proposed Dwelling, Attached Secondary Dwelling and Associated Works" the consent authority was granting consent to two dwellings which could only be used in conjunction with each other. I find that, despite the fact it contains two dwellings, the building therefore meets the description of a unit in the terms of cl 2.6(3)(b).
16. I consider that this conclusion accords with the ordinary meaning of the word unit, once it is appreciated that a secondary dwelling cannot be used independently from its principal dwelling. This is not a merely technical distinction but one of crucial importance to the design, approval and occupation of the building, matters to which cl 2.6 requires the Court to have regard.
17. Although it is not determinative, I am comforted in this view by the fact that the construction I have reached gives effect to the town planning purpose of cl 2.6, as Council submitted. It is plainly envisaged by cl 2.6 that consent for strata subdivision is not required where consent has already been granted for a building which contains separate units. However, where the consent was predicated upon a primary dwelling and a secondary dwelling being used in conjunction with each other and on the same lot, merit considerations arise in the subdivision of the dwellings such that it makes sense that consent would be required.
18. Accordingly, I have determined that Ground 1 ought to be upheld. Although this finding is dispositive of the appeal, I deal with the other grounds because they have been the subject of full and proper argument before the Court and because Council submits that the proper disposition of the appeal depends upon my findings in relation to the other grounds of appeal.

Ground 2

1. Ground 2 is pleaded in the alternative to Ground 1, and is advanced on the basis that Council submits that notwithstanding the Commissioner's finding that the strata division component of the DA did not require consent, he nevertheless proceeded to grant consent at [37] in the primary judgment.
2. Council submits that, even if the Commissioner's construction of cl 2.6 of Appendix 1 of the Growth Centres SEPP is correct, such that development consent was not required for the strata subdivision component of the DA, he fell into error by granting development consent for development, being the strata subdivision, which did not need consent. Council submits that the strata subdivision component was a separate, independent and significant component of the DA, and that a "subdivision" is a discrete form of development.
3. The respondent submits that Ground 2 takes an unacceptably pernickety and fine tooth-comb approach to the primary judgment. The respondent says that it is clear from the orders at [37] that what is approved is a change of use from the existing approved dwelling and secondary dwelling to semi-detached dwellings.
4. The respondent submits that, although the orders at [37] in the primary judgment include the words "strata subdivision", on a fair reading of the primary judgment as a whole it is clear that the Commissioner concluded that no development consent was required or granted for the subdivision. The respondent says that this is made abundantly clear by [36] of the primary judgment, in that the Commissioner said the words "Torrens title subdivision" should be removed from the plans, which the respondent submits only has meaning if the Commissioner was not granting consent to the subdivision.
5. The respondent submits that the Commissioner has approved only the part of the DA dealing with a change of use and that this is a power exercisable by him pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). The respondent further submits that the fact the Commissioner did not refer to s 4.16 of the EPA Act does not affect the fact that the power was available to him and that he was not required to refer to it in reaching his decision.
6. The respondent submits that the Commissioner's reference to the strata subdivision element of the DA in Order 2 of [37] merely represents the Commissioner's description of the application to which he is granting approval. In other words, the respondent says Order 2, in effect, should be read: "Development Application 10.2016.1034.1… is approved subject the conditions in Annexure A."
7. The respondent acknowledges that the conditions of consent include steps to be taken before the issue of a strata plan of subdivision, but says these are similar to the steps required to be taken before the issuing of an occupation certificate. The respondent submits that just as the Court Consent does not grant an occupation certificate, neither does it grant consent for strata subdivision. The respondent submits that the conditions of consent are consistent with there being no grant of consent for strata subdivision because none is required.

Consideration

1. Although it is not strictly necessary to consider Ground 2 given my finding in relation to Ground 1, had I been of the view that strata subdivision was not required for the strata subdivision component of the DA, for the reasons that follow I would not have found the legal error alleged in Ground 2 dispositive of the appeal.
2. The Commissioner's orders are at [37] of the primary judgment: The Courts final orders are: (1) The appeal is upheld (2) Development Application 10.2016.1034.1 for the change of use of an existing approved dwelling and secondary dwelling to semi-detached dwellings, minor amendments and the strata subdivision of the two dwellings at 14 Davidson Street Oran Park is approved subject the conditions in Annexure A. (3) The exhibits are returned with the exception of exhibits 1, A and B. (4) The applicant is to pay costs pursuant to s97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
3. Council referred the Court to Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 ('Conservation of North Ocean Shores Inc'), in which Preston J said at [14]: Environmental planning instruments made under the Environmental Planning and Assessment Act 1979 (NSW) classify development into three broad categories: development that does not need development consent, development that needs development consent, and development that is prohibited. A development application may be made seeking development consent only for development that is classified as needing consent (see ss 77(a), 76A(1) and 78A(1)). A consent authority has no power to grant development consent to development that does not need consent (see ss 76(1) and 77(a) and Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 (10 March 1995)) or development that is prohibited (see ss 76B and 77(a) and Chambers v Maclean Shire Council (2003) 57 NSWLR 152 at 169 [117]; 126 LGERA 7 at 25 [117] and Currey v Sutherland Shire Council (2003) 129 LGERA 223 at 231 [34]).
4. In Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 ('Precision Rubber'), the case which Preston J cited for the proposition that a consent authority has no power to grant consent when it is not required, Pearlman J said: If no consent is required to a development pursuant to the provisions of the relevant environmental planning instrument, then a person will not be in breach of the Act if that person carries out that development. If no consent is required, then the council has no function in relation to that development. It is not empowered to grant development consent where no development consent is required. If it purports to do so, as happened in the circumstances of this case, its grant of consent is superfluous and has no legal effect. It is not a development consent under div 1 of pt IV to carry out development.
5. A consent authority's lack of power to grant development consent where it is not required does not mean that a development application for development which does not require consent is "invalid". As Spigelman CJ said in Currey v Sutherland Shire Council and Russell [2003] NSWCA 300; (2003) 129 LGERA 223 ('Currey') at [35]: I see very little, if any, scope in this legislative scheme for the concept of a "valid" application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process.
6. In Butler Street Community Network Inc v Northern Region Joint Regional Planning Panel [2017] NSWLEC 51; (2017) 226 LGERA 213, I found, based on the principles in Currey and Precision Rubber, that a development application which includes elements for which development consent is required as well as elements for which development consent is not required is a valid application (in relation to those elements which require consent) which gives rise to the jurisdiction of the Court to hear an appeal based on its refusal and further that a development consent given to such an application will be valid to the extent it relates to the elements which require consent.
7. Accordingly, I find that, to the extent the Commissioner fell into legal error of the kind alleged in Ground 2, as opposed to simply making a fulsome reference to the nature of the DA to which he was granting consent, the elements of the orders so affected were merely superfluous, and do not meet the description of a vitiating error.
8. Accordingly, and again, although not determinative given my finding in relation to Ground 1, I find that Ground 2 has not been made out.

Ground 3

1. Clause 4.1A(1)(e) of Appendix 1 of the Growth Centres SEPP relevantly provides: 4.1A Minimum lot sizes for other development (1) Development must not be carried out on a lot in Zone R1 General Residential or Zone R3 Medium Density Residential for any of the following purposes if the area of the lot is less than the area specified below in relation to those purposes: … (e) semi-detached dwelling - 200m², ...
2. Council submits that there is no doubt that this constitutes a "development standard" within the meaning of that term in s 1.4 of the EPA Act and that proposed Lot 1 in the DA has an area of 191m².
3. Council submits that, as such, cl 4.6 of Appendix 1 of the Growth Centres SEPP operates to require a written request in order to vary the 200m² development standard. Council submits that the application of cl 4.6 was a principal contested issue in the appeal and that, as there was no cl 4.6 request, the Commissioner was without power to grant the development consent.
4. The respondent submits that the only lot to which cl 4.1A could apply is the existing lot of 451m², as the proposed future strata lots are not created by the Court Consent (this submission being predicated upon the assumption that no consent is required for the strata subdivision and that the Commissioner did not grant such consent).
5. Further, the respondent submits that on a proper construction of cl 4.1A, the clause is not referring to lots that may arise from a subdivision, as many development applications to which cl 4.1A applies may have no subdivision component at all but the reference to lot size must be given work to do. The respondent says that the context in which cl 4.1A arises, appearing after two clauses specifically dealing with subdivision and expressly stated to be a clause dealing with "other development", reinforces what the respondent says is the correct construction of the reference to "lot" in cl 4.1A, being a reference to the existing lot rather than a lot arising from subdivision.
6. Accordingly, the respondent submits that it is irrelevant that the Commissioner noted at [1] in the primary judgment that the proposed Lot 1 had an area of 191m². The respondent submits that the area of lot where the subdivision is sought to be carried out is the existing lot of 451m², and that as this lot had not been subdivided at the date of the primary judgment, it is impossible that the development standard in cl 4.1A was breached.
7. Moreover, the respondent submits that even if the area of Lot 1 is relevant, there was no error of law made by the Commissioner as the evidence supported a finding that the lot had an area of greater than 200m². It says that the plans suggest the area of "Lot A" (also referred to as "Lot 1") is over 200m² as there is an "exclusive use" area of 3m² in addition to the 198m² shown on "revision plan G". The respondent notes that the town planning experts at paragraphs 48 and 49 of their joint report agree that the area of "Lot A" is over 200m² and therefore compliant with cl 4.1A. The respondent submits that in those circumstances there is no error of law in the primary judgment of the kind alleged in Ground 3.
8. In reply, Council submits that it is not correct to say that cl 4.1A only refers to existing lots, because it refers to "attached dwellings" and "semi-detached dwellings" which by definition cannot be on only one lot of land. Therefore, Council submits that the phrase "area of the lot" refers to the area of each lot containing an individual dwelling following the implementation of the proposal, or else the clause does not work.

Consideration

1. The "development" the subject of the DA is clearly strata subdivision with some minor consequential amendments. The subdivision (that is, the development) must be "carried out" on the existing lot. The size of the lots created by the subdivision cannot be the relevant minimum lot size for the purposes of cl 4.1A because until the time the subdivision is carried out, the lots do not exist.
2. I am comforted in this view by the fact that cl 4.1 of Appendix 1 of the Growth Centres SEPP provides a specific development standard in respect of minimum subdivision lot sizes. Clause 4.1 provides: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) to ensure that the minimum size for lots is sufficient for the provision of usable areas for building and open space, (b) to facilitate and encourage a range of residential lot types, in particular, small lot housing, (c) to encourage the efficient use of land for residential purposes. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Precinct Plan. (3) The size of any lot resulting from any such subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan.
3. On a clear reading of Appendix 1 of the Growth Centres SEPP, it is the development standard in cl 4.1 which applies to the situation of subdivision and not the development standard in cl 4.1A. This is because, although cl 4.6(3) provides that development consent "must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard," no development is being undertaken that contravenes the development standard in cl 4.1A which stipulates that development must not be undertaken on a lot smaller than the sizes stipulated for each development type.
4. However, as I have explained, where the development is a form of subdivision the relevant lot size must be size of the lot which is to be subdivided. No development which would contravene the 200m² lot size for a semi-detached dwelling was sought in the DA. Therefore I find that no cl 4.6 request was required in respect of the development standard in cl 4.1A.
5. Accordingly, I find that Ground 3 has not been made out.

Ground 4

1. Council submits that Ground 4 is a separate ground of appeal, but says that it is "in substance" the same as Ground 3. Ground 4 relies upon s 4.16(2) of the EPA Act which provides: 4.16 Determination (cf previous s 80) … (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
2. Council submits that by reason of the fact that Lot 1 did not comply with cl 4.1A ("minimum lot sizes for other development"), there resulted in a contravention of an 'environmental planning instrument' (being the Growth Centres SEPP) contrary to s 4.16 of the EPA Act. In the absence of a written request under cl 4.6 of Appendix 1 of the Growth Centres SEPP, the Court was, by operation of s 4.16(2), required to refuse the application. However, the Commissioner approved the application.
3. Council submits that the application of cl 4.6 was a principal contested issue between the parties, and that the Commissioner's determination to grant consent to the subdivision was therefore beyond power.
4. To the extent that Ground 4 raises the same issues as Ground 3, the respondent relies upon its submissions made under that ground. However, the respondent additionally submits that a further reason for rejecting Ground 4 is that s 4.16 of the EPA Act only applies to development for the subdivision of land, which the respondent says is not a description of the DA, which is for a change of use and not for subdivision (this argument is again advanced on the basis that the strata subdivision component of the DA is permissible without consent).

Consideration

1. Given my finding in relation to Ground 1 that consent is required for strata subdivision in the context of the proposed development, I am not persuaded by the respondent's submission that the DA, properly understood, does not seek consent for strata subdivision.
2. However, I do not consider that a cl 4.6 request is required in relation to the alleged breach of the development standard in cl 4.1A on the basis that, for the reasons given at [80]-[83], the development is proposed to be carried out on the existing lot with the consequence that cl 4.1A properly understood is not applicable to the strata subdivision.
3. Accordingly, I find that Ground 4 has not been made out.

Ground 5

1. Ground 5 is no longer relied upon by Council, and the Court therefore did not hear submissions in this regard.

Ground 6

1. Council submits that one of the principal contested issues in the appeal was the failure of the proposed Lot A (that is, the existing secondary dwelling after its conversion to a proposed semi-detached dwelling) to provide legible and convenient front door access, and the failure to encourage casual surveillance of the street. Council says that this was reflected in Contention 10 of Council's Statement of Facts and Contentions and was one of 12 separate and independent contentions which Council argued before the Commissioner should have led to refusal of the development application.
2. Council further submits that the Commissioner made no findings in relation to this contention and that the adequacy of reasons involves a question of law for the purposes of s 56A of the LEC Act. Council submits that the failure to provide any reasons on a principal contested issue in the proceedings was a material error of law.
3. The respondent submits that this submission would be rejected on the basis that the parties and the Commissioner are taken to have understood the issues between them, including the Statement of Facts and Contentions, and that it is not necessary in these circumstances for express findings to be made in relation to each contention.
4. The respondent submits that the Commissioner, at [24] in the primary judgment, expressly turned his mind to identifying the principal issues which remained in dispute. The respondent submits that Contention 10 was not a principal contested issue as it merely occupied a few lines of transcript in Council's closing submissions. As such, the respondent submits that the Commissioner was not required to give express reasons in relation to this issue, as it could not on any fair view of the case founded a refusal.
5. The respondent further submits that the Commissioner gave adequate reasons as to why he found the Lot 1 frontage acceptable in any event at [27] of the primary judgment. The respondent submits that the Commissioner was not required to give reasons which addressed each aspect of the minutiae raised in Contention 10, but rather was entitled to address the matter in substance by finding that the frontage was acceptable for specified reasons.
6. The respondent also submits that the Commissioner was entitled to take an approach, relying on Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [78] ('Seltsam'), of identifying streetscape as the key issue in the proceedings and deciding the case on that basis provided that he informed the parties that this was his intention.

Consideration

1. I deal first with the respondent's submission that the Commissioner was entitled to decide the case on the basis of streetscape impact alone provided that he communicated his intention to do so to the parties. In Seltsam, Ipp JA, with whom Mason P agreed, reviewed the case law relating to procedural fairness and said at [78]: These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
2. I do not consider that Seltsam assists the respondent. Seltsam refers to a situation in which a judge (or other decision-maker) has an alternative basis upon which to dispose of a case which has not been the subject of submissions by the parties. In those circumstances, it is open to a judge to decide the case on that basis, but only after canvassing it with the parties.
3. The requirement to put the alternative basis to the parties is a matter of procedural fairness. This is made clear by the judgment in Seltsam at [79], where Ipp JA said: A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.
4. The importance of according procedural fairness was recently explained by Preston J in the context of a s 56A appeal in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [126]-[133]. Those principles are only indirectly relevant here.
5. For present purposes, it is sufficient to observe that the principle in Seltsam does not permit a Commissioner to narrow the issues between the parties by ignoring certain submissions that were put in favour of what he or she might perceive the "real issues" to be. If a Commissioner is minded to uphold an appeal and grant development consent, it is incumbent that he or she reaches a state of satisfaction in respect of each contention that would independently warrant the development's refusal.
6. However, each independent ground warranting refusal will not necessarily be coterminous with the way in which the grounds are expressed in a council's statement of facts and contentions. It is not necessary for a Commissioner to deal with each contention that is raised, but necessary rather to deal with each "principal contested issue".
7. I draw the nomenclature of "principal contested issue" from the Court of Appeal's decision in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 ('Segal'). In that case, Tobias JA, which whom Beazley JA (as her Honour then was) and Basten JA agreed, said at [99]: Accordingly, I would summarise my views on this aspect of the matter as follows: (a) Although a Commissioner of the Land and Environment Court is obliged to consider the principal contested issues before him or her, each of those issues is the genus of which the various arguments in favour or against the resolution of the issue in a particular way are species. (b) It is unnecessary for a Commissioner or a judge of the Court to consider each of the species provided he or she has considered the genus. It is that which must be addressed in the Commissioner's or judge's reasons. Those reasons must be adequate to explain, by way of findings and reference to the evidence supporting the findings, the reasoning process adopted by the Commissioner or judge and which has led to his or her conclusion. …
8. Whether an issue constitutes a "genus" or a "species" thereof is a matter of fact and degree in each case. In the circumstances of Ground 6, the question is whether Contention 10, or the alleged failure of proposed Lot A to "provide legible, convenient, front door access" and the alleged failure to "encourage casual surveillance of the street", was a principal contested issue, as Council contends, or whether it was a subset of the acceptability of the frontage, as contended by the respondent.
9. The respondent notes that Contention 10 only occupied a few lines of the transcript in Council's closing submissions before the Commissioner. Council submits that the amount of time spent on the issue is irrelevant and it was a central and separate reason why the DA was not approved.
10. From [24] of the primary judgment onwards, the Commissioner turned his mind to the outstanding merit matters, having concluded that the strata subdivision component of the DA was permissible without consent. He identified three outstanding matters: lot width; orientation; and streetscape/character. In relation to the last of these, the Commissioner gave three reasons for finding that "the proposed development is acceptable in its context and how it appears in the streetscape" at [33]-[35].
11. It is true that none of these reasons specifically addresses the issue of front door legibility or casual surveillance in as many words. However, it is not necessary for the Commissioner to have given explicit reasons in this regard if he considered the issue in substance: Bellenger v Randwick City Council [2017] NSWLEC 1 ('Bellenger') at [33].
12. I consider that the issues relating to front door legibility and street surveillance are properly considered "species" of the genus of the issue relating to streetscape and frontage and that the Commissioner therefore dealt in substance with those issues. In particular: 1. The Commissioner found at [33] that the proposed development did not need to appear in conformity with the "popularly conceived" view of what constitutes a semi-detached dwelling provided that it met the definition of "semi-detached dwelling" in the Growth Centres SEPP; and 2. The Commissioner found at [35] that "it could not be said that the approved development creates any inconsistency in the streetscape and the minor changes proposed do not change this acceptable association with other dwellings in the area. Given that the application seeks to change the use of an existing building, the control requiring garages to be located at the rear of the site cannot be reasonably enforced".
13. The second of these findings is the more significant in the context of Contention 10. The Commissioner approached the DA on the basis that the existing building was already there and the fact that the garage was at the front of the premises was in those circumstances unavoidable. The fact of the garage being at the front clearly has impacts for front door legibility and casual surveillance, but the Commissioner did not consider that sufficient reason for the DA to be refused.
14. In this regard I note that the entrance to what was the secondary dwelling was proposed to be moved from the side of the premises to the front and the garage was to be converted into a carport. I consider that in those circumstances, there was sufficient evidence before the Commissioner to conclude that the matters relating to front door legibility and casual surveillance were part of and included in his finding that the streetscape impacts of the proposed development were acceptable.
15. Accordingly, I find that Ground 6 has not been made out.

Ground 7

1. Council submits that a development control plan should be a "fundamental element" in or a "focal point" of the decision-making process and that, in the hearing before the Commissioner, the application of cl 7.7.1 of the Oran Park Precinct Development Control Plan 2007 ('OPPDCP') was a principal contested issue.
2. Clause 7.7.1 of the OPPDCP provides: 7.7.1 Attached or Abutting Dwellings Additional controls for attached or abutting dwellings are outlined below, and should be read in conjunction with those in Clause 7.6. Objectives a. To ensure that the development of attached or abutting dwellings creates an architecturally consistent street character. Controls 1. It is preferred that garages for attached dwellings are located at the rear of the lot. Where attached dwellings have frontage to a collector road, all vehicle access and parking is to be located at the rear of the lot. 2. Attached or abutting dwellings should have a pleasing rhythm and order when seen together as a group, rather than appear as a random arrangement of competing dwellings. Each dwelling should benefit from the unified design of the whole form, a co-ordinated style and base colour palette. Individuality can be added as small details or accent colours, rather than strikingly different forms.
3. Council submits that the Commissioner erred in law because: 1. He wholly discounted the importance and application of cl 7.7.1 in the assessment of the DA due to the absence of any definition in the OPPDCP of the term "abutting dwellings". It was incumbent on the Commissioner, in those circumstances, to define the term himself and apply that definition to the facts and circumstances of the application so as to give meaning, and work to do, to cl 7.7.1 of the OPPDCP; and 2. He was influenced by the absence of controls in the Growth Centres SEPP relating to "abutting dwellings". It was immaterial that the Growth Centres SEPP did not contain provisions relating to "abutting dwellings". It remained incumbent on the Commissioner to apply the controls in the OPPDCP because those controls were "fundamental elements" in or a "focal point" of the decision-making process.
4. The respondent submits that Ground 7 cannot be supported as the Commissioner clearly dealt with cl 7.7.1 of the OPPDCP at [31]-[35] of the primary judgment. The respondent submits that the Commissioner's reasoning was that there was no definition of "abutting dwellings" in the OPPDCP and that the objective of the cl 7.7.1 control was met in any event, and that this approach was open on the evidence. The respondent says Ground 7 appears to be a thinly veiled attack on the merits of the Commissioner's reasoning in that regard.

Consideration

1. The Commissioner's use of the word "inappropriate" at [34] is somewhat infelicitous given that the OPPDCP does apply to the site, however it is clear from the context that the Commissioner is giving voice to a concern that there is some doubt that what the Growth Centres SEPP refers to as "semi-detached dwellings" meets the description of "attached or abutting dwellings" in the OPPDCP.
2. In any event, the most relevant passage of cl 7.7.1 provides "[i]t is preferred that garages for attached dwellings are located at the rear of the lot. Where attached dwellings have frontage to a collector road, all vehicle access and parking is to be located at the rear of the lot".
3. The Commissioner understood and considered both the "objectives" and "controls" in cl 7.7.1 and each of the town planning experts' views in respect of them. Irrespective of the Commissioner's comment at [34], he went on to deal with cl 7.7.1 at [35], holding that it was unreasonable to apply control 1 in circumstances where the building had already been built with the garage at the front.
4. I find that it was open for the Commissioner to make this finding, particularly given that cl 7.7.1 is expressed in the loose language of a "preference", which in the present case was difficult to achieve.
5. Therefore, I find that Ground 7 has not been made out.

Ground 8

1. Council submits that one of the principal contested issues in the appeal was that the proposed development would not promote the objects of the EPA Act and was therefore not in the public interest. Council says that this was reflected in Contention 12 in its Statement of Facts and Contentions and was one of 12 separate and independent contentions which Council argued should have led to refusal of the development application.
2. Council submits that the Commissioner made no findings in relation to this contention and that the adequacy of reasons involves a question of law for the purposes of s 56A. Council submits that the failure to provide any reasons on a principal contested issue in the proceedings was a material error of law.
3. The respondent submits that the Commissioner decided the case in a way that did address Contention 12, which alleges non-compliance with the controls for semi-detached dwellings, as he found that the proposed development was an appropriate development which satisfactorily complied with the controls for semi-detached dwellings. The respondent submits that in those circumstances, the Commissioner was entitled to deal with Contention 12 without reproducing it in his judgment and without expressly addressing parts that were not dispositive of his decision.
4. The respondent further submits that not every argument is tenable or needs to be addressed in the reasons for judgment and that the particulars to Contention 12 fall within that category to the extent that they allege anything other than non-compliance with the development controls, an issue which the respondent says was adequately addressed at [15] and [23]-[35] of the primary judgment.
5. In particular, the respondent says that to the extent that Contention 12 alleged the development was a sham and did not promote the objects of the EPA Act and was therefore not in the public interest, this submission was very shortly addressed in Council's closing submissions before the Commissioner. The respondent submits that on a fair reading of the primary judgment as a whole, the Commissioner did not find that the proposed development was a sham or that it did not serve the public interest. In those circumstances, the respondent submits that it was not necessary for there to be an express rejection of Contention 12 as it could be inferred from his surrounding findings.

Consideration

1. I do not consider that the contention that the proposed development would not promote the objects of the EPA Act and was therefore not in the public interest is, in itself, one of the principal contested issues between the parties in the sense required by Segal. My reasons may be shortly stated.
2. First, it is clear that the question of whether the proposal was in the public interest is a consideration which was implicitly at the centre of the Commissioner's merit consideration of the DA. In Bellenger at [32], Preston J found that a Commissioner had not fallen into legal error by failing to refer explicitly to s 79C(3A)(b) of the EPA Act, which contained the matters for consideration now largely replicated in s 4.15 of that Act. It is not necessary for a Commissioner to refer to each part of the legislative scheme governing the consent process provided that each substantive issue is addressed. Reasons for decisions need not be lengthy or elaborate: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443.
3. Secondly, as Tobias JA said at [93] in Segal, the concept of a principal contested issue is confined to the "essential ground or grounds upon which the decision rests". It would be an unusual case where a Commissioner was satisfied in respect of each individual merit issue raised but nonetheless found that the application should not be approved due to a general concern about the "public interest". That is not to say that such cases do not exist, but in circumstances (like the present case) where the public interest is employed as a "catch-all" for the concerns otherwise expressed by a council, I do not consider it is an error of law for reasons not to deal with that ground discretely.
4. Thirdly, and similarly, the particulars to Contention 12 do nothing more than restate the issues relating to the semi-detached dwelling controls which were already the subject of other contentions and which the Commissioner gave reasons for rejecting.
5. Therefore, I find that Ground 8 has not been made out.

The appropriate disposition of the appeal

1. I have therefore determined that Ground 1 should be upheld but that none of the other grounds are made out. In essence, I have concluded that the Commissioner erred in finding that the proposed development before him did not require consent for strata subdivision.
2. In those circumstances, I consider that the appropriate disposition of the appeal is for the matter to be remitted to a Commissioner of the Court for determination of whether consent should be granted to the DA in light of my finding that development consent is required for the strata subdivision component.
3. Although in the circumstances of my findings it is unnecessary to form a concluded view as to whether a "change of use" is required, I note that it seems a primary and secondary dwelling could not be converted to semi-detached dwellings simply by way of an application seeking "change of use" because the latter requires separate lots whereas the former must be on the same lot.
4. In other words, an application seeking "change of use" cannot alone convert a primary dwelling and secondary dwelling to semi-detached dwellings because the dwellings will remain on the same lot, but once any subdivision is effected, the building can no longer be considered a primary and secondary dwelling. To the extent any change of use is required, it would need to "run together" and come into effect simultaneously with the application for subdivision.
5. The ordinary course in s 56A appeals is for costs to follow the event as per r 42.1 and Sch 1 of the Uniform Civil Procedure Rules 2005 (NSW). That is the order I am inclined to make, but I grant leave to the parties to make any alternative costs application within 14 days should they wish to do so.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. The decision and orders of Commissioner Brown of 2 February 2018, apart from Orders (3) and (4), are set aside. 3. The proceedings are remitted to a Commissioner or Commissioners of the Court to be determined in accordance with these reasons for judgment. 4. If an alternative order is not sought within 14 days, the respondent is to pay the appellant's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2018